CA9: Prison visitor should be allowed to avoid a strip search based on RS by being permitted to leave

A prison visitor has the right to leave a prison to avoid a strip search based on reasonable suspicion as a condition of entry. Qualified immunity, however, is granted because the right was not well established before this case. Cates v. Stroud, 2020 U.S. App. LEXIS 30633 (9th Cir. Sept. 25, 2020), summary by the court:

The panel affirmed the district court’s summary judgment for defendants in an action brought pursuant to 42 U.S.C. § 1983 and state law alleging that plaintiff’s constitutional rights were violated when she was, among other things, subjected to a strip search upon arriving at a prison to visit her boyfriend.

The panel held that plaintiff’s unconsented strip search was unreasonable under the Fourth Amendment. The panel held that even if there was a reasonable suspicion that plaintiff was seeking to bring drugs into the prison (a question the panel did not reach), the criminal investigator who performed the search violated plaintiff’s rights under the Fourth Amendment by subjecting her to the search without first giving plaintiff the option of leaving the prison.

The panel held that prior to the panel’s decision in this case, there had been no controlling precedent in this circuit, or a sufficiently robust consensus of persuasive authority in other circuits, holding that prior to a strip search a prison visitor—even a visitor as to whom there is reasonable suspicion—must be given an opportunity to leave the prison rather than be subjected to the strip search. Accordingly, because at the time of the violation, plaintiff did not have a clearly established Fourth Amendment right to leave without being subjected to the search, defendant was entitled to qualified immunity. The panel held that plaintiff’s other causes of action, which included additional Fourth Amendment and due process claims, failed.

And this is what qualified immunity should be: The right is established or not in the case presented. If it wasn’t clearly established, then qualified immunity can be granted, but the right remains established. So many cases just decide qualified immunity and not the underlying claim, as though the courts are afraid to decide the merits. Good faith exception cases often suffer the same fate, and the Fourth Amendment claim goes undecided seemingly forever.